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Associate Chief Justice Frank Marrocco: “It’s not much of a test if you first have to get sick in order to prove it”

Colin Perkel, Globe and Mail
Families opposed to the erection of large-scale wind farms near their homes failed to prove the projects would cause any serious harm to their health, an Ontario government lawyer said Tuesday. In his opening comments, Matthew Horner told a Divisional Court panel that a review tribunal was correct to reject objections to the turbines based on health concerns.

“There’s no indication that the tribunal made a palpable and overriding error,” Horner said late on Day 2 of the hearing. He also said the tribunal was right to reject the residents’ “novel argument” that the approvals process violates the constitution.

Four families are asking the appellate court to throw out decisions by the Environment Review Tribunal that upheld approvals of three large-scale wind-energy projects. They also want the approvals process declared unconstitutional on the grounds that the law precludes them from arguing turbines might cause them harm. Read article

11 thoughts on “Associate Chief Justice Frank Marrocco: “It’s not much of a test if you first have to get sick in order to prove it””

Participatory democracy – with all the…………wait…………
“all the procedural rights” – and, you can wear ‘ear muffs’ –
if you like – government lawyers!

‘[excerpt] Meuleman countered that the tribunal took into account “all the procedural rights” of everyone involved in deciding against stopping the process.

She also dismissed suggestions the tribunal had “failed” to allow the families to enter a Health Canada study on the effects of wind turbines as evidence.

A summary of the study, released Nov. 6, found no direct link between turbines and the health of nearby residents but did find a link to their levels of “annoyance” which could have adverse health effects.

“They never asked the tribunal to stop the clock and wait for the results of the Health Canada study,” Meuleman said.

In addition, she said, only a summary of the study has been released and no one knows what exactly it means.

——————————————————————————-
If there’s any – ‘common sense’ in the courtroom – justice will be served;
halt all projects!

‘[excerpt] Earlier in the day, the lawyer for the families wrapped up his submissions by asking the court to order the Environmental Review Tribunal to hold new approval-review hearings on the projects.

“Send it back with constitutional relief,” Julian Falconer told the justices.

‘[excerpt] The Business Insider beamed that Harper showed Australia’s own anti-Putin conservative Prime Minister Tony Abbott “how to shirtfront the Russian president”–shirtfront being an Australian term similar to “smackdown.”’

Like many of the respected and informed commenters here…I am gone…
This site used have comments that were informative….
…now it is just a couple of people that copy and paste what I have already read…or…the commenter that always posts who is who ,without any correlation , substance or validity to the article…
Something went terribly wrong with this site…

HURON COUNTY — Sarah Mills hopes townships deciding whether or not to allow wind energy development can take the results of her study and understand the likely impacts.

Mills, a University of Michigan doctoral candidate from Monroe County, wrapped up a two-year study of wind parks in Huron County and presented her findings Tuesday.

“Essentially, before, it was either pro-wind people or anti-wind people that were telling you this,” Mills said. “This is a third-party study telling you this.”

Mills gathered data from Michigan Wind I in Ubly; Harvest I in Oliver and Chandler townships; DTE Energy’s project in Sigel and Bloomfield townships; and Stoney Corners Wind Farm, which contains 29 wind turbines in Missaukee and Osceola counties.

Surveys were sent to 1,730 landowners in nine townships. Mills, citing a “fantastic” 71 percent response rate, said she is confident that results are representative of the county.

Several landowners’ responses illuminate “one of the things that people don’t talk about,” Mills said.

“Your community should know that there will be blinking red lights at night,” Mills said. “That was a big concern that people were sharing with me.”

There’s also a takeaway in terms of economic impacts of wind energy.

“(Economic impacts) are really felt by the people with turbines on their property, but not so much by anybody else,” Mills said, adding that spreading economic benefits more broadly could be a good thing.

In townships where developers forecast high revenue and a number of new jobs, “citizens were less satisfied because developers overpromised and under-delivered,” Mills said.

But those who are “anti-wind energy” seem to be the minority, she said — and the study also highlighted positive responses from landowners.

Mills says interviews and data show people with turbines on their land are more likely to have a succession plan in place.

“People were telling me that ‘Now our kids see a future in farming,’ ” Mills said.

Results show 80 percent of those surveyed who have turbines on their property have a succession plan in place, compared to 62 percent of their neighbors.

“This holds up even when you account for the size of the farming operation,” she said.

Results also indicate that wind developers, local officials and residents agree on one thing: wind should be regulated at the local level.

“Again, probably not surprising to many of you in this room,” Mills said during discussion at Tuesday’s board of commissioners meeting.

In terms of revenue from easements and leases, Mills said most residents checked a box for $3,000 or more in the survey. Residents reported the extra money helps the farming business, in that it could be used to pay property taxes.

“Does it help? Yes. Tons? No,” Mills said after reviewing responses.

The question of if it is worth it for landowners to receive money from turbines surfaced.

Jeff Smith, the county’s building and zoning director, said about a half an acre is taken out of farmland production for most 40- to 80-acre fields for a turbine and access road.

“That landowner is receiving … $8,000 to $10,000 for that turbine and access road to be there,” The (Michigan Department of Agriculture) looks at $200 an acre as net farm income typically. If they’re getting $8,000 to $10,000 for half an acre, that’s why the farmers are doing it.”

[In the study, t]itled “Farming the Wind: Preserving Agriculture through Wind Energy Development,” Mills sought answers to the following questions:

• How does proximity to a wind farm impact residential demand for farmland?

• How do zoning ordinances affect availability of developable land in the area surrounding a wind farm?

Mills said she also spoke with township supervisors, assessors, realtors and auctioneers. In doing so, she heard a “really interesting” prospect.

“There might actually be a possible connection between wind income and new home building,” Mills said. “A couple supervisors were telling me there are new houses being built in these townships with wind turbines, and they’re being built by people who have turbines on their property.”

The study showed participating landowners are more likely to build a new home, but that those not on farmland are still building.

“My hypothesis was that people don’t want to build a brand new house in the midst of a wind farm,” Mills said. “I didn’t find that that’s actually the case.”

What she did find is that people with turbines on their property invest “twice as much as everybody else.”’

FACTUM OF THE COALITION AGAINST INDUSTRIAL
WIND TURBINES (ONTARIO)
(Re: Main Appeal)
November 3, 2014
[3 pages with lawyers’ names]

‘[excerpt]
4. The Coalition proposes to make the following arguments, which represent
a unique perspective and are not being made by other parties:
[….]
(ii) That the test for “causation” to be applied by the environmental review
tribunal, in this case and future cases should be the “material contribution
test” (as opposed to the “but for test” that was applied in these cases).
[…]
PART III – LAW AND ARGUMENT

7. The Coalition submits that the legislative scheme for REAs and ERT
appeals, including the causation provision at s. 145.2.1 (3), must be interpreted in a
manner consistent with Charter values and norms.
[…]
18. The “but for” test is the prevailing test in the private law tort context. The
underlying policy consideration for the “but for” test is the concern that a defendant not
be ordered to pay money for an injury he or she did not cause. However, in public law
health cases (such as the one at bar), were damages are not the issue, where the science
and technology are evolving and both sides acknowledge that additional research is
needed, different causation considerations ought to apply. The intervenor submits that as
a principle of fundamental justice (rooted in the common law), a lower threshold than
“but for” – the material contribution test – should apply. The material contribution test
was set out by Major J. in the private law case of Athey v. Leonetti :
“The “but for” test is unworkable in some circumstances, so the courts have
recognized that causation is established where the defendant’s negligence
“materially contributed” to the occurence of the injury: [citations
omitted]. A contributing factor is material if it falls ourside the de minimis
range:” Athey v. Leonetti (1996), 140. D.L.R. (4th) (S.C.C.) see paras 15, 41, pp. 239, 245

19. Recently, the Supreme Court of Canada in Clements v. Clements expressly
recognized that the material contribution test is still part of the law in Canada, and that
new situations may raise new considerations for the application of that test. The example
used by the Court was “mass toxic tort litigation with multiple plaintiffs, where it is
established statistically that the defendant’s acts induced an injury on some members of
the group, but it is impossible to know which ones.” In such a circumstance the threshold
for proving causation is less onerous than the “but for” test. So too-it is submitted-in
the case of an ERT hearing. As noted above, based on what occurred in the appeals in
question, it appears a strict application of the “but for” test was applied. Clements v. Clements , 2012 SCC 32, at para. 44′

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